Seized papers trigger legal brawl

DA's office went around trial judge to get warrant for defense's documents.

By John MacCormack / jmaccormack@express-news.net

Updated 11:59 pm, Wednesday, October 26, 2011

Local legal titans clashed Wednesday over the highly unusual seizure by the Bexar County district attorney's office of documents from a defense attorney during a trial earlier this year.

Kathleen Pierce, who was convicted in January of stealing large sums from her longtime employer, the locally owned Newby's Hair Styling Salon, has yet to be sentenced.

Her otherwise unremarkable case became a cause célèbre for defense lawyers when prosecutors used a search warrant to seize defense documents, claiming they'd been stolen from the Newbys.

“This is unprecedented. You will never find a single case in all the annals, even in common law, of one judge issuing a search warrant to seize documents in another judge's courtroom while a trial is ongoing,” said Cynthia Orr, a local defense lawyer.

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On Wednesday, in a courtroom that at times offered standing room only, state District Judge Raymond Angelini began wading into the issue in a hearing on Pierce's motion for a new trial.

Both District Attorney Susan Reed and her chief of prosecutors, Cliff Herberg, participated. Three criminal defense lawyers associations have filed friend-of-the-court briefs in the case.

The only moment of levity in what otherwise was the tedious business of lawyers interrogating lawyers came when one witness mistakenly referred to Gerald Goldstein, the dean of the local defense bar, as “Jerry Springer.”

Prosecutors say they were forced to get a search warrant after defense lawyer Tony Reyes declined to make the documents available for inspection, and state District Judge Ron Rangel, presiding at the trial, declined to order him to do so.

“If there's been a crime alleged, then let's have an investigation, issue grand jury subpoenas, trial subpoenas, to be done the way you're supposed to,” Reyes told the judge at the time.

Prosecutors said the search produced numerous stolen documents, including banking records, tax records, invoices, employee time cards and W-2 statements that belonged to the Newbys.

But defense lawyers say the seizure was an extreme overreach by prosecutors.

More potential problems for prosecutors arose Wednesday over the wording in the search warrant affidavit.

In it, both Tony Reyes and Kathleen Pierce are named as suspects in “multiple offenses” including “misapplication of fiduciary property $200,000 or more.”'

But when District Attorney Investigator Ruben Segovia, who helped prepare the search warrant affidavit, testified that Reyes never was considered a suspect in the theft of any money from the Newbys, the judge interrupted.

“If he's saying that, he's lying to the court, and before he answers that question, he may need a lawyer,” Angelini said.

It was unclear what Angelini meant. Segovia is expected to resume testifying today.

After that exchange, defense lawyers gathered in clusters, marveling at the unexpected turn of events.

“I told the prosecutors that the biggest mistake your office made was in naming the lawyer as a suspect to the stealing of those records,” lawyer Roy Barrera Sr. said.

“The other problem that the state has is that when they seized the documents with the original search warrant (before Pierce's trial), they left some documents behind. So, she had a right to assume they were abandoned,” he added.

But Herberg, said afterward that the search warrant affidavit does not accuse Tony Reyes of being a party to any theft of money.

“It could have been better written. The fiduciary property is the documents,” Herberg said.

And he said the whole confrontation could have been avoided if Reyes had simply agreed to another way of returning the documents.

“When it was brought to his attention that he was in possession of stolen documents, he said get a search warrant, which is what we did,” Herberg said.

“This was about recovering those documents, which were the property of the Newbys, before they left the courtroom. And when a lawyer refuses to turn over stolen property, there is probable cause to believe a crime may have been committed,” he said.